Variance question

Homeowner #1 wants to build a fence across his front yard. Our CC&R's require a 25 foot set back from property lines for ALL structures. Setback does not give exception to fences; however, there are several existing front yard fences in the neighborhood that go to edge of property lines. There are also multiple similar structures like walls that do not conform to the 25 ft setback. HOA does not have records on approval or variances for these existing fences & walls.

Homeowner#1 submitted for approval with location of 5 ft side setback from property line on both ends of the fence. Board approved project with a variance of 15 ft side setback on each side, as a compromise. As part of the approval process, the Board contacted the neighbors on either side of the homeowner for comment of the fence project. One neighbor had no objection to the fence, the other wanted the full 25 ft side setback. (No reason given, but they had a dispute recently with Homeowner #1). The proposed fence will be set back 14 ft from the road so it does not impede on any property nor violate any city codes. The only conflict is the side setbacks.

My question is whether the Board has the right to set the variance at 15 ft as a compromise, when other similar structures have been allowed with significantly less set back. Or can the 15 ft compromise set back be considered unfair based on precedence of the many other structures being allowed within the setback?

Neither Board or Homeowner #1 want to budge on their side setback locations of the fence.

Need thoughts on who has the stronger position as this may be headed to court.

What's the BOD's variance policy?

- Is it standard practice to invite comments from adjoining neighbors?

- Is it standard practice to allow the adjoining neighbor's input to influence the BOD's decision?

- If yes, what's the limit of how many feet the BOD is willing to adjust in order to accommodate one neighbor?

- Does the BOD have a policy on lopsided fences, where 1 side has zero setback and the other side has 25 foot setback?

- If there is a policy, what steps have the BOD taken to ensure that personal biases by BOD members don't influence the decision process?

- How much of this is published to the community?

If the BOD lacks a clear cut policy that addresses these issues, then its decisions are wide open to challenge for being arbitrary.

NpS,
It is standard practice to check with adjoining homeowner; however, I believe some of the Board members are confused to give an objecting homeowner so much influence over their decision.

The only fences that I know of in the neighborhood extend to the property lines on both ends. I don't know of another instance where a set back was required. Based on this, the only reasonable justification that I can think of would involve safety (i.e. blocking driveway view, transformer box clearance, etc.). None of this applies.

The opposing neighbor actually has a 75 ft long wall that comes within 4 ft of the Homeowner's property line in places.

Opinions of the neighbor who opposes the improvement should not factor into the BOD's decision on the matter unless the opposing neighbor's opinion is actually based on factual specifications from your own governing docs or local municipality specifications/requirements regarding fences.

Informing the neighbors of improvements should only be seen as a courtesy, not asking permission or seeking input on what should or shouldn't be allowed.

You'll find definitions that support either side of the argument here . . . but personally my definition of "structure" would not include fences as I feel (and some definitions support this) that fences are not in the same category as real structures like garages, sheds, out-buildings, etc. Fences are more of an accessory to a structure, accessory structure, or projection into a yard space. Considering that, the 25ft setback you're pointing out would not apply to fences since they are not structures by that definition.

Further, precedent has been set with other fences already going to the property line and this opposing neighbor's own wall not adhering to the 25 ft setback. So why does the 25 ft setback now apply in this case or even the 15 ft compromise? This owner should be allowed to install up to the property line if they choose given the fact that other fences exist like that and no documentation exists to verify or deny that approval had been given. (Side note: Follow up with those owners to provide documentation that they were allowed to go to the property line.)

I would check with your local municipality on what they require for fence setback to provide you with additional info and perhaps a more official specification of what you should allow/not allow.

Finally, my personal view on fences in situations like this where neighbors themselves can't agree between themselves . . .
- The fence owner needs to have enough setback to ensure that during install, they do not encroach on the other owner's property and no element of the fence goes past the property line. Example: Putting in posts requires digging holes larger in diameter than the posts themselves. And if there is concrete, even though underground, it should be completely within the boundaries of the fence owner's property. Considering that, it would be extremely difficult to put fence posts directly against the property line.
- If close to the property line, the fence owner needs to ensure that there is enough setback to allow them to properly maintain grass on the outside of the fence without them encroaching on their neighbor's property to do that maintenance. Whether that's enough room to run a push mower or a string trimmer or whatever is up to the fence owner.